United States District Court, D. New Jersey
OPINION & ORDER
Michael Vazquez, U.S.D.J.
matter comes before the Court on the motion of Defendant, the
Acting Commissioner of Social Security, to dismiss the
Complaint of Plaintiff Martin Johnson for failure to timely
file this action pursuant to Section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g). D.E. 8, 9. Plaintiff,
who is proceeding/?™ se, did not file
opposition. The motion was decided without oral
argument pursuant to Federal Rule of Civil Procedure 78 and
Local Civil Rule 78.1. The Court has considered the
parties' submissions and grants Defendant's motion to
dismiss with prejudice.
29, 2013, Plaintiff filed an application for supplemental
security income. The Commissioner denied the application at
the initial administrative review level and on
reconsideration. Plaintiff then requested a hearing before an
administrative law judge ("ALJ"), and the ALJ held
a hearing on January 8, 2016. D.E. 9-1 at 7. At the hearing,
Plaintiff was advised of his right to representation, but he
decided to proceed without an attorney or other
representative. Id. In a February 7, 2015 opinion,
the ALJ determined that Plaintiff was not disabled.
Id. at 15. In response, Plaintiff sought review
before the Appeals Council.
August 31, 2017, the Appeals Council denied Plaintiffs
request to review the ALJ's decision. Id. at 16.
The Appeals Council mailed its decision to Plaintiff at his
home address. Id.
Appeals Council further advised Plaintiff that he could seek
additional review by filing a complaint in the United States
District Court, but warned Plaintiff that he had "60
days to file a civil action (as for court review)."
Id. at 17, 18. The Appeals Council additionally
apprised Plaintiff that "[t]he 60 days start the day
after you receive this letter. We assume you received this
letter 5 days after the date on it unless you show us that
you did not receive it within the 5- day period."
Id. at 18. The Appeals Council also notified
Plaintiff as follows:
If you cannot file for court review within 60 days, you may
ask the Appeals Counsel to extend your time to file. You must
have a good reason for waiting more than 60 days to ask for
court review. You must make the request in writing and give
your reasons in the request.
the five-day presumption into account, Plaintiff had until
November 4, 2017 to file his complaint with this Court. Since
November 4, 2017 was a Saturday, Plaintiff could have timely
filed his complaint by November 6, 2017. Plaintiff, however,
filed his Complaint on November 21, 2017, and he dated his
Complaint the same day. D.E. 1. Plaintiff also sought to
proceed in forma pauperis, which the Court granted.
Commissioner now moves for dismissal due to the late filing.
As noted, Plaintiff has not opposed the Commissioner's
Legal Standard and Analysis
Court has jurisdiction to review claims arising under the
Social Security Act as provided in 42 U.S.C. §§
405(g) and (h). Section 405(h) states as follows:
No findings of fact or decision of the Commissioner of Social
Security shall be reviewed by any person, tribunal, or
governmental agency except as herein provided. No action
against the United States, the Commissioner of Social
Security or any officer or employee thereof shall be brought
under section ...